BALA BUX Vs. SITARAM

JUDGEMENT

(1.) THE facts giving rise to this revision application are that the non-petitioner Sita Ram filed a suit for recovery of possession of a shop against the petitioners in the Court of the Civil Judge, Bhilwara on 22nd October, 1955.

(2.) THE petitioner-defendants denied the plaintiff's claim, issues were framed on 17th December, 1955 and the case was fixed for the plaintiff's evidence on 25th January 1956. On 25th January, 1956 the following order was passed by the learned Civil Judge: "plaintiff's counsel present. Plaintiff's evidence is not present. THE suit is therefore, dismissed for want of proof and may be consigned to record. " On the same day an application was moved by the plaintiff for restoration of the suit stating that he along with his witnesses was coming to the court but the case was called at 10-30 A. M. and dismissed. He further prayed that the statement of his witnesses might be recorded. Notice of this application was given to the petitioners and on 2nd March, 1956 the court set aside the order dated 25th January, 1956 and restored the suit to its original stage on payment of Rs. 7/- as costs. It appears from the order-sheet that the amount of cost was accepted by Shri Rajmal learned counsel for the petitioner.

(3.) IN the Madras case, in the absence of the party a vakil appeared on the date of hearing and stated that he had no instructions. It was urged before the High Court that it was necessary for the pleader to say that he severed his connections with the case and in the absence of such a statement pleader must be held to have appeared on his client's behalf. This contention was repelled and it was held that : "though the provisions of O. 5, R. 1 sub-cl. (2) in terms only apply to a defendant the same rule applies also to the plaintiff and the mere attendance of the pleader who for want of instructions is unable to answer all material questions relating to the suit is not an appearance on behalf of his client. " It was further observed that: "i do not think any set form of words is necessary to convey to the Court the information that he has ceased to appear and that he, in fact, does not appear for his client. There is no magic in the words 'i have ceased my connection with the case'. IN my opinion the mere atten dance of a pleader who, for want of instructions, is unable to answer all material questions rela ting to the suit is not an appearance on behalf of his client. "